What is the Process for Filing a Personal Injury Lawsuit?
If you’ve ever been injured in an accident, you may have played out a scenario like this in your head:
You know the accident that caused your injury wasn’t your fault. In fact, you’re quite certain someone else is at fault. You want to be a forgiving person and never thought of yourself as the kind of person who would sue someone else. But now, you find yourself incurring medical bills, missing work and struggling with the emotional stress caused by the event. You feel like you’re out of options, except for one – file a lawsuit to recover some of the damages incurred because of the accident. Even after making that decision, you really don’t want to involve a lawyer.
So how do you do it yourself?
Having spent more than 25 years as a personal injury attorney, I am asked that frequently, and I always give the same answer:
Don’t try to file a lawsuit on your own.
Attorneys go to law school, take licensing tests and practice for years to understand the legal system so you don’t have to. But with just a little bit of general information, you can understand your options, whether you decide to go it alone, or speak with a lawyer and make the most of their services.
Lawsuit vs. Claim Pre-Litigation
For background, let’s discuss the difference between a lawsuit and a pre-litigation claim. When someone is injured, and not represented by counsel, they typically gather their medical records, figure out their financial damages, make a settlement demand to the claims adjuster, and try to negotiate a resolution.
This is not the filing of a lawsuit. This is the negotiation of a claim pre-litigation.
Filing a personal injury lawsuit is the act of physically filing a complaint with the appropriate court. In Tennessee, in a personal injury action, with few exceptions, this must be done within one year of the date of the accident.
Determining Where to File Your Personal Injury Lawsuit in Tennessee
General Sessions Court – Pros and Cons
- Pro : Filing in General Sessions Court is cheaper. The filing fee in General Sessions Court for a personal injury claim is in the range of $110 to $125.
- Pro : Filing in General Sessions Court is much easier and “user-friendly.” This is because General Sessions Court provides a less complicated alternative for unrepresented litigants. A complaint in General Sessions Court is known as a “Civil Warrant.” It is a simple process, and the clerk will usually assist you. It should not take more than 20 minutes to prepare one.
- Con : General Sessions Court only applies to cases with a value of less than $25,000. Even if your case is worth more than that, you cannot recover more than $25,000 in General Sessions Court for a personal injury claim. That is why this is oftentimes referred to as “Small Claims Court.”
- Con : General Sessions Court has an automatic right of appeal to Circuit Court, which means that if you go to General Sessions Court and obtain a satisfactory result, you can expect the defendant to appeal your claim to Circuit Court. If the defendant decides to do so, it is automatic and there is nothing you can do to prevent it.
The Verdict : As an attorney, I would never file a claim for personal injury benefits in General Sessions Court. Only individuals without representation use this avenue.
Circuit Court – Pros and Cons
- Pro : There is no cap (jurisdictional limit) to the amount of money you can sue for, so you do not have a “glass ceiling” on your recovery like you would in General Sessions Court cases.
- Pro : There is no automatic right of appeal in this situation. When a case is settled in Circuit Court, it is less likely to proceed to another level of appeals unless you choose to do so.
- Con : The filing fee is more expensive than General Sessions Court – anywhere from $280 to $325.
- Con : Circuit Court requires a more sophisticated and legally involved complaint. While this is something that attorneys do every day, it would surely pose a challenge for the non-attorney. Even worse, an improperly drafted complaint is subject to dismissal for failing to properly state a claim, or “cause of action.” As such, I would never suggest an unrepresented plaintiff attempt to represent himself in Circuit Court.
The Verdict : This is a more involved course of action that requires legal expertise, but it will provide the opportunity to be made whole for loss related to your injuries.
Hiring vs. Consulting With an Attorney
If you feel like your situation does not permit hiring an attorney to file a lawsuit on your behalf, PLEASE, at least consult with an attorney. Almost all personal injury attorneys will meet with you for a free initial consultation, so there is no reason not to take advantage of that opportunity. To fail to do so would be like turning down a free consultation from a surgeon and trying to remove your own appendix.